November 20, 2017 Climate

The Necessity Defense: Civil Disobedience and Climate Activism

Written by: Shannon Nichols


“Necessity” is a new buzzword in the environmental justice world, with more and more activists making headlines in their attempt to use necessity as a defense for civil disobedience in the era of climate change. But what is a “defense of necessity” when it comes to climate activism?

A necessity defense is a type of legal strategy that can be used when someone charged with a crime believes that the alleged violation of  law was justified because the illegal action serves to prevent the occurrence of a greater or future evil. The classic example of a necessity defense strategy in legal texts is “breaking and entering the dwelling of another” for the purpose of avoiding life threatening  weather event, like freezing temperatures or a hurricane. For activists organizing around the matter of climate change, this is a potentially powerful legal strategy.

Last year, a court case in Seattle garnered interest when members of an activist group named the Delta 5 were allowed to present a necessity defense to justify trespassing and blocking railways used to transport oil and coal. The judge, however, ultimately ordered the jury to ignore the activists’ argument, as it did not fully meet the requirements for the defense to be used. In a nearly identical case this year, a Lutheran pastor who blocked coal and oil trains in Spokane, WA is also being allowed to utilize the necessity defense, but the outcome of this case remains to be seen (Spokane County v. Taylor).  

The Lakota People’s Law Project — a project of the Romero Institute — is aiming to use a defense of necessity to defend attorney and former Democratic congressional candidate,  Chase Iron Eyes, who was charged with felonies for his involvement in the #NoDAPL movement in Standing Rock earlier this year. These charges result from an action on Feb. 1, 2017, when Iron Eyes, along with 75+ others, established Last Child Camp on 1868 Treaty Land near the Standing Rock Sioux Reservation to oppose President Donald Trump’s hasty approval of the controversial Dakota Access pipeline (DAPL). While over 70 demonstrators — self-titled "water protectors" — were arrested for establishing the camp on private land, Iron Eyes was uniquely singled out as a leader and the only one charged with a felony.

Iron Eyes’s case has garnered significant interest for his role in #NoDAPL and additionally for his use of the necessity defense at the intersection of climate organizing and indigenous rights activism. Iron Eyes’s charges, criminal trespassing and incitement of a riot, stem from his peacefully protesting the construction of DAPL and the treaty violations it represents. The use and reception of this legal strategy signals and reflects a major shift in attitudes on civil disobedience and legality of civil disobedience in regards to modern-day political protest.

Last Child Camp, Feb. 1, 2017.

In order to be used, a defense of necessity must satisfy five requirements: the defendant must believe that there is a legitimate threat;  the damage from the threat is greater than the damage from their actions; the damage from the threat must be imminent; there must be no other legal way they could have prevented  the threat; and the situation must not be the making of the defendant.

An important aspect of this legal stratagem is that the judge is required to rule prior to the trial  on whether or not the necessity defense can even be used by the defendant. Therefore, the defense must state their intent to use this strategy and justify its use in front of the judge before the trial. If the judge determines that the evidence is sufficient to establish a prima facie case justifying the necessity defense, the defendant is allowed to present evidence supporting the defense to the jury.  The judge will instruct the jury to consider whether the defendant has satisfied the requirements during their deliberations on innocence or guilt .

While it has not been used in cases like Iron Eyes’s ever before, the necessity defense has a long history in criminal law. The classic example is the case of Regina v. Dudley and Stephens from the UK in which Dudley and Stephens invoked the defense of necessity for murdering a boy with whom they were lost at sea in order to cannibalize his remains. They argued that they had no idea when or if rescue would come, and therefore were left with no other option. Though they did not win the case, it is often cited as one of the first cases to use a necessity defense. A more auspicious precedent was set in the U.S. case of United States v. Ashton where the court upheld the necessity defense for a group of sailors charged with mutiny, which they argued was necessary due to the fact that the ship was not seaworthy.

Besides its ordinary use in criminal law, additional rulings have further refined the requirements that must be met in order to be able to use and successfully argue a necessity defense. The Model Penal Code makes an important distinction that the requirement of imminency  does not necessarily mean immediate , as the act in question may be necessary to prevent a future evil.

Notably, in People v. Pena, a man was concerned about the well-being of his girlfriend after she had been told by a police officer he would take her home and was taken into his car. Despite being under the influence of alcohol, the man followed the police officer’s car in his own vehicle and was subsequently charged and convicted of driving under the influence. He challenged this based on the necessity to ensure the safety of his girlfriend. The decision by the court of appeals to reverse his conviction established that the illegal act could have alleviated harm to people other than the defendant — “people” in this case being the girlfriend.

The important clarifications for the requirements of imminence and threat of harm expand the defense to be more applicable in the realm of activism. Because climate activists aim to protect everyone and the planet itself from the devastating effects of global climate change — which are beginning to manifest now — allowing the acts to alleviate potentially distant harm to others, in addition to the defendant, can aid climate activists in their use of the defense. These expansions of the requirements can help them combat potential arguments about the imminency of climate change’s effects and the relevancy of protesting outside of one’s community.

The necessity defense has no recorded success with climate change activists.  There are, however, cases where courts have allowed the defense and no decision has yet been reached by the jury.  The defense  has been used successfully by nuclear activists in a similar historical parallel. The first successful nuclear case using a defense of necessity was State v. Mouer, where the defendants organized in front of the gates of the Trojan Nuclear Power Plant in Oregon and were arrested for trespassing after refusing to leave. They were allowed to present the necessity defense and subsequently acquitted. State v. Mouer and cases like it are reason to be hopeful that the necessity defense may yet work for climate activists. Despite the fact that they are protesting different things, nuclear activists and climate activists both aim to prevent harm from an unquestionably destructive and deadly force.

In considering Chase Iron Eyes’s use of the necessity defense, we must consider the imminent danger he was facing as a Standing Rock resident and why he did what he did to prevent DAPL from threatening his tribe’s water and religious sovereignty. With so many high profile oil leaks and spills, he was reasonably worried that an oil spill would occur on his ancestral lands. As the pipeline goes under a reservoir that is the Tribe’s sole source of drinking water.  A spill would be devastating to the tribe’s water supply and, therefore, their existence. Beyond being a source of drinking water, Lake Oahe and the surrounding land is sacred to the Standing Rock Sioux Tribe, as it is an ancestral burial ground and provides the water for sacred ceremonies such as the Lakota rite of Inipi (sweatlodging).

Iron Eyes’s acts of prayerful witnessing  were then an attempt to protest climate changeand the government’s continuing colonial behavior in the form of unauthorized seizure of indigenous treaty lands via imminent domain. His concern was for more than himself; it was for the very land on which his family lives and to guarantee his family the health and safety that all beings should be afforded. As climate research has conclusively shown that human activities are causing climate change, it will be hard to ignore the fact that many climate activists, including Iron Eyes, are directly working to divert our path away from destruction.

There is hope that Iron Eyes’s case could satisfy the five key requirements and pave the way for future activists. A win here would usher in a new awareness of climate change and its effects, which is so desperately needed in a sea of high-profile climate deniers. Even more importantly, it could spark a consciousness more cognizant of issues relating to indigeneity and the constant struggle indigenous peoples face with the U.S. government and its long legacy of settler colonialism. Only through concrete action can we ever hope to change the system of subjugation allowed to operate in the name of the U.S. government.